The Legal Dose is Now a Podcast!

September 27, 2013

Episode 1: LGBTQ Law Center

The Legal Dose has moved to a podcast format, you can follow the link above to stream or download Episode 1.

In this episode:

Charlotte School of Law Civil Rights Clinic member Joshua Lipack sits down with Sarah Demarest and Kelly Durden at the newly founded LGBTQ Law Center in Charlotte, NC.

Learn more about the LGBTQ Law Center here.

LGBTQ Law Center Contact Info:


Citizen Review Board Q & A

September 26, 2013

Recently, Charlotte’s Citizen Review Board (CRB) has been receiving media scrutiny over its 78-0 record, having never sided with a citizen complaining of police misconduct.  As a result of this negative publicity, the Civil Rights Clinic took an in-depth look at the structural issues within the ordinance creating the CRB.  The identified issues were condensed into an email which was sent to Council-Manager Relations Committee and Task Force members to peruse before this Monday’s committee meeting where issues regarding the Citizens Review Board will be discussed.

HISTORY AND BASICS OF THE CRB

The need for civilian oversight of the Charlotte-Mecklenburg Police Department came after several officer-involved shootings during the mid-1990s.  The CRB was created in 1997 to strike a political compromise between advocates promoting more police accountability and those who believed that law enforcement officers should be regulated by an exclusively internal policy.

The CRB does not have the authority to discipline officers or dictate department policies directly.  The CRB does hear appeals from citizens dissatisfied with how the Police Chief handled complaints of police misconduct and makes recommendations to City Council and the Police Department about how to address problems of misconduct.  This puts the CRB at the forefront of citizen-police oversight in Charlotte, making it imperative that the CRB is equipped with the tools necessary to provide an effective mechanism for oversight.

THE CURRENT CRB APPEALS PROCESS

  1. Citizen files complaint either directly with the Police Department or through the Community Relations Committee.
  2. Internal Affairs investigates the complaint and submits its report to the Police Chief, who makes a disciplinary decision and notifies the citizen of his decision.
  3. If the citizen is dissatisfied with the Police Chief’s decision, he/she can file an appeal with CRB.
  4. CRB holds an initial hearing.  The citizen is often unrepresented and has no evidence other than the investigative report from Internal Affairs.
  5. If CRB finds that the citizen has proven by a preponderance of the evidence that the Police Chief abused his discretion in applying the disciplinary action in question, then the citizen receives a full evidentiary hearing.
  6. CRB holds a full evidentiary hearing.  CRB can request further investigation by Internal Affairs, but has no subpoena power (cannot compel anyone to disclose information or appear as a witness).
  7. If the citizen can again prove by a preponderance of the evidence that the Police Chief abused his discretion then CRB may recommend that disciplinary action be taken.
  8. CRB’s recommendation goes to the Police Chief, the citizen, and the City Manager.  The police chief retains the final say as to whether to follow the advice of CRB.

ISSUES FACING THE CRB AND PROPOSED AREAS OF REFORM

Issue #1:  The high evidentiary burden

Only 4 of the 78 appeals have resulted in a full hearing.  Citizens have a difficult time making it past the initial hearing because of the high procedural burden required before a full evidentiary hearing takes place.  The current ordinance requires that a citizen prove by a preponderance of the evidence that the police chief abused his discretion in the disposition of disciplinary action at the initial hearing.

Answer #1:  Replace “Preponderance of the Evidence” with “Reasonable Cause to Believe” at the Initial Hearing Stage

At the initial hearing, the CRB looks only at a summary of the Internal Affair’s investigative report and the complaint to make its initial determination.  At this stage, complainants are not afforded the opportunity to engage in discovery or present a fully developed array of evidence to support their complaint and are typically unrepresented, while the Police Department can send as many representatives as they see fit.  The imbalance of evidence presented to the Board at this stage makes the burden of “preponderance of the evidence” an unlikely one for the complainant to meet.  Lowering the burden to “reasonable cause to believe” at this initial stage in the complaint process ensures that citizens are afforded an adequate and equal opportunity to receive a full adversarial hearing on the merits of the complaint.  The standard of review at the full hearing would remain “preponderance of the evidence.”

Answer #2:  Shift Focus of both the Initial and Final Hearings from “Abuse of Discretion” to “Whether Misconduct Occurred”

The current focus of CRB’s initial and final disposition of complaints is on the disciplinary decision of the Police Chief. This standard of “abuse of discretion” prohibits the effective function of the CRB for two reasons: 1) an abuse of discretion standard is an unreasonably high standard for citizens to meet and therefore is deferential to the police, and 2) the decision by CRB should be an independent review of the merits of the complaint rather than an assessment of the Police Chief’s discretionary authority.

Issue #2:  No investigatory or subpoena power

Independent investigatory powers are vital to creating the public perception that a civilian oversight committee is neutral and independent from law enforcement.  One complainant interviewed during our research stated that she felt the Board members were not interested in making a decision against the police, that she was unsure of whether the Board was actually working with the police, and that if a citizen wants an impartial hearing they are better off “bringing in somebody from out of town.”

Answer:  Provide CRB with independent investigatory and subpoena power

The perception that CRB operates within the Police Department can be corrected by giving CRB the power to investigate independently from Internal Affairs. Investigating through the lens of the Police Department does not give the CRB a completely neutral assessment of the situation.  With independent investigative authority, members of the CRB would be empowered to conduct more thorough and impartial hearings because they would be able to access information on their own as opposed to being routed through the Police Department.

CRB’s authority should mirror that of the Civil Service Board (CSB).  CSB, which addresses appeals from police officers who do not agree with their disciplinary action, has the power to subpoena witnesses, administer oaths, and compel the production of evidence.  Without this power, the CRB has no way to compel the police officer accused of misconduct to appear at the hearing, therefore leaving the complainant with no opportunity to cross-examine.  Since both the CRB and the CSB are civilian oversight committees reviewing inter-department disciplinary action—albeit from different complainants—CRB, too, should be granted independent subpoena power to best represent the objectives of the CRB.

Issue #3:  Lack of transparency and communication between CRB and the community

There is not enough readily obtained information about the CRB.  Currently, the city’s website only consists of one short paragraph stating how many members are on the Board and the Board’s general duties.  On CPD’s website there is a Q & A that describes the general process of filing a complaint and how the appeals process with the CRB works.  Furthermore, the closed meeting minutes fail to adequately document business discussed during the closed session.

Answer #1:  Improve CRB’s transparency and communications

The city should make three changes.  (1) All information pertaining to the CRB and complaint and appeals process should be located together on a separately maintained webpage.  Information should include plain language illustrations of how the process works, expectations of what amount of detail should be included in a complaint in order to receive a full hearing, statistical and historical data about the nature, number, disposition, and final disciplinary action of complaints, and the names and occupations of all CRB members as well as the point of contact for community members.  (2) The Board should maintain sufficiently detailed records of its hearings.  (3) Annual reports that the CRB compiles should be comprehensive and readily available to the public – as well as used by the Public Safety Committee when assessing and reforming policy.

Answer #2:  Ensure adequate representation of Charlotte’s communities

Reducing the number of appointed Board members to seven, and requiring a representative from each district in Charlotte would ensure geographic representation, but other qualities such as profession, socio-economic status, and community involvement should be considered when electing members for the CRB.

Answer #3:  Require specific and thorough training of each CRB member

Sufficient legal, policy, and community sensitivity training should be required before service on the Board.  Unbiased legal training (from both prosecutors and defense attorneys) should be provided to create an open, neutral, or receptive forum for complainants.

To learn more about the Citizens Review Board, you can view the Civil Rights Clinic podcast here:  http://www.youtube.com/watch?v=C__pJa75_jg


An Investigative Response to “After 8 Years, Charlotte School Of Law Has Become NC’s Largest. So What’s [the] Value Of [a] Degree?”

September 22, 2013

By: Hailey Hawkins

I am not a reporter, and I may not be what many would consider a “traditional” law student.  I entered Teach for America immediately after college and taught high school math in Charlotte-Mecklenburg Schools for three years.  During my second year of teaching I met and fell in love with the man who is now my husband, a CSL graduate, and an assistant public defender in Gaston County.  When I decided to leave the classroom to change careers and attend law school, my primary goals were to stay close to Charlotte and attend a school that made the most economic sense for me.  Now that I am in law school, involved in the Civil Rights Clinic, Moot Court Honor Board, and Law Review, I have had the opportunity to work with some of the most amazing faculty members, students, and practitioners in Charlotte.

On Thursday, September 12, 2013, WFAE Reporter Julie Rose released her investigative journalism piece on Charlotte School of Law. Like every strong investigative journalist, she approached her research by looking for a particular story, and focused on the evidence that supported her theories.  Unfortunately, in a venture to paint Charlotte School of Law (“CSL”) as the biggest school in North Carolina with the lowest quality, there were several facts that were ignored or misrepresented.

Charlotte School of Law is not the “traditional” law school.  While every other law school in North Carolina has an average age of 24 for the entire enrollment, the average age of a first year student at Charlotte School of Law in 2012 was 27.  Many students at CSL are not the traditional students coming straight from undergraduate school who knew their whole lives that they wanted to be lawyers.  Rather, the nontraditional student may want to start his or her own business based on past experiences and areas of expertise, already own a business and want the legal education to better manage that company, or see the opportunities for dual-degree programs or part-time curricula that fit in with their familial or professional lives.  There are also traditional students, those coming straight from an undergraduate institution, who wanted to live in Charlotte or already lived in Charlotte.  Other students have families and spouses that work and live in Charlotte, and for these individuals, commuting nearly three hours every day, or even once a week, is not an economic option.

Julie Rose quoted Elie Mystal, editor of the blog Above the Law: “If you’re that dead set on going to law school and staying in North Carolina, you should go to the absolute cheapest law school you can get into, get your degree, pass the bar and then hustle for a job.  Unless you go to Duke, you’re gonna have to hustle for a job and so, you might as well hustle for a job with as little debt as possible hanging over your head.”  This statement may be true, and if this is the case then it actually supports most students going to Charlotte School of Law. There are several students in Charlotte School of Law with high LSAT scores and GPAs from their undergraduate school who have made the financial decision to attend CSL because they have earned merit scholarships.  There are students here because this is the only opportunity they had based on other factors, such as having a family in Charlotte, attending undergraduate school years ago, or not doing as well on the LSAT.

The reality is that Charlotte School of Law is giving people an opportunity to achieve a higher level of education that may or may not have otherwise been available.  Classes of students of different of ages and backgrounds lends to conversation and case analysis far beyond what is written in the book.  Most of the faculty members have practiced in their respective fields and can bring real-life situations into every class.  The diversity of the student body, combined with the clinical, practice-ready approach built into the curriculum, has allowed individuals to grow beyond just the black letter law to develop practical skills that can be applied in their professions.

Ms. Rose spoke with Isaac Sturgill, a recent alumnus of Charlotte School of Law who works for Legal Aid of North Carolina in Charlotte, and instead of changing her thesis that CSL provides a low quality education, she explicitly states that “he is not the norm.”  However, this statement leaves the question, “what is the norm?”  The numerous clinical opportunities available to students provide hours of pro bono resources in the city, and since 2006 over 140,000 hours of legal services have been provided to Charlotte. Of these hours, 67,155.46 hours are pro bono, 59,432.36 hours through externships, and 14,465.03 are hours of community service.  Julie Rose sat in on one of the meetings for the Civil Rights Clinic and, despite witnessing a conversation outlining a research proposal that could positively impact the administration of justice for parties to criminal district court proceedings, the only reference to that meeting was the picture on the website, supplementing the article.  In spite of all the evidence suggesting that this clinical approach and focus on legal services actually was “the norm,” Rose focused on the cost and size of the school.

Julie Rose’s article and the statements contained therein do not paint an accurate picture.  Although the CSL bar passage rate for the North Carolina July 2013 bar was 58%, this is not the average that Charlotte School of Law has produced since its inception.  In February 2010, July 2010, February 2011, and February 2013 Charlotte School of Law students were above the average passage rate in the state, and over the past four years the bar passage rate has averaged approximately 70%.  In terms of employment, 88.9% of the 2012 graduates were considered employed per the NALP, a national organization of legal recruiting and placement professionals that has collected legal employment data for nearly 40 years.  Of this nearly 90% of graduates employed, 89.4% are employed in positions that require bar passage or a law degree, and 5.8% are employed in other professional positions.

As Rose identifies, “many of [the professors] graduated from top law schools—[and] rave about the freedom and support they get from the school.”  Charlotte School of Law not only hosts professors from top law schools, such as Harvard, Yale, Northwestern, Wake Forest, and UNC, but also individuals who excelled or still excel in their practice areas.  The focus on practice ready, clinical, non-traditional education allows professors to offer greater advice and experiential learning opportunities so students can hit the ground running as soon as they enter a firm or practice, or start their own firm.  The faculty, which defines the quality of education available at a school, is focused on ensuring that students are leaving CSL with the skills and knowledge necessary to be successful in the legal profession.

Our school is young, and our alumni base is not as established as Duke, Wake Forest, or UNC, but as the alumni base grows so will the job market in Charlotte.  John Lassiter, President of Carolina Legal Staffing, stated, “The challenge is the legal profession always has biases to highly-ranked schools that have strong alumni bases.”  The alumni that graduate from CSL are neither less qualified nor less intelligent to compete for the jobs, but the reality of these biases does play a role in the job market.  Students from CSL will need to work twice as hard, if not more, to overcome the presumptions that Rose’s article exacerbates.  Charlotte School of Law is young in the legal community, and being new naturally causes uncertainties in an established community.  However, the timing and focus of Rose’s article adds greater stress to those students who just graduated, passed the bar, and are now entering the grueling job market because it builds on a negative presumption that these new lawyers will need to overcome.

Students and faculty members of Charlotte School of Law have been fighting the uphill battle to build a positive reputation and earn a position of respect in the North Carolina legal community.  Rose’s article demonstrates that the battle is nowhere close to over, and calls for action on behalf of all students, faculty, and alumni of Charlotte School of Law.  It is our task to prove these stereotypes wrong and demonstrate that our school and students are intelligent, talented, and providing a service in the Charlotte community.  Through perseverance, hard work, and time, we can show that graduates striving for public justice and excelling in their respective fields ARE the norm.


Unmasking the Rights of Children and their Parents in Education

September 15, 2013

By: Joshua Lipack

407783_1676833686017_2051181580_n (1)Last week, four Clinic students attended an in-depth training seminar offered by the Council for Children’s Rights.  The program was broken down into four individual sessions – (1) Special Education, (2) Know Your Rights: Student Rights in Public Schools, (3) Advocacy Tips: How to Stay Organized and Be Effective, and (4) Panel Discussion: Navigating School Discipline – which focused on issues commonly faced by parents with exceptional children.  Most of those in attendance were parents who had already gone through many of these issues and developed war stories of their own.  The subjects’s many complexities, which could easily span a semester’s length of instruction in juvenile law, were scaled down into an impressively short crash-course clocking in at less than four hours.

Parents acting as advocates on behalf of their children, whether in obtaining an appropriate Individualized Education Program (IEP) or contesting an inappropriate behavioral sanction, can easily find themselves lost within any number of barriers.  While the goal on either side is to reach the best interests of the child, increasing pressure on school districts can unfortunately allow some children to fall through the cracks.  Many parents actively working on behalf of their children are often facing the hopelessly daunting task of blindly navigating through the education system. CFCR Logo

One presenter offering simple yet invaluable advice explained the critical importance of being organized.  The process for obtaining an IEP for an exceptional child requires many meetings.  With the help of a well-organized three-ring binder, parents are able to alleviate much of their stress by being able to respond quickly to questions raised during meetings regarding former mental health evaluations or disciplinary records.

Presenters impressively transitioned between complex issues while making them easy to understand.  In addition to organizational tips, parents were given a quick run-down of the in what essential rights they have during the IEP process.  These rights were easily condensed into one slide:

Right to examine all records relevant to the child’s education;

Right to attend and participate in all IEP meetings;

Right to invite others to IEP meeting;

Right to request an independent evaluation;

Right to receive prior notice;

Right to pursue conflict resolution procedures.

Knowing they are in possession of these few simple rights gives parents not only the knowledge they need to advocate for their children but the necessary confidence as well.  Parents in the audience left feeling empowered by key language they would need to walk into a meeting informed.  Parents now know to say that they are looking for their child to receive an “educational benefit,” a phrase taken directly from the common law interpretation of the Free Appropriate Public Education Act (FAPE), rather than asking to maximize their child’s potential, which may in itself be enough to demonstrate they know what they are talking about.  In many situations, in a child’s education, a few strategically placed buzz words are all you need to show the one across the desk from you that you know what your child has a right to and that you are not backing down until your child has everything they need.

The Council for Children’s Rights periodically offers this and other free training programs and can be contacted at (704) 372-7961.

Additional Resources

Disability Rights of North Carolina               1-800-821-6922

Exceptional Children’s Assistance Center    1-800-962-6817

Wrights Law                                                1-800-962-6817

ParentVOICE                                               704-365-3454


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